Are the guards compelled to act?

Kings Inns or bust

Pulled out from another thread.

Kings Inns or bust wrote: »

@GM228 I fecking knew I'd read something on point recently and I'll continue to dig out something more on point. Please keep challenging me on it as I'll never forget it again or this:

DPP v Bartley Unreported CCC 13th June 1997

As per Carney J

"it is an indictable offence at Common Law if a public officer wilfully and without reasonable excuse or justification neglects to perform a duty imposed on him either by Common Law or Statute."

Now there are a load of issues in the instant case which I'm sure will be pointed out with glee, but as a starting point to your query I just couldn't contain myself until morning. I really am living the dream!

Edit: Turns out this was the case I was looking for all along. A further obiter comment reads.

“where a credible complaint of felony is made to a policeman he has no discretion under the Common Law not to investigate it and apprehend a named offender. A failure to carry out this duty vigorously constitutes an illegality on the policeman’s part and renders him liable to prosecution.”

On the compelling a guard, I'm hanging my hat here. It's of dubious use in minor criminal damage/assault I would concede. I reckon there is something in this and the Dytham case but I'll have to have a hunt tomorrow if it's quiet at work. I might even get some useful info for the hospital security one and your powers of arrest thread GM228!

Thoroughly enjoying this one folks!

GM228 wrote: »

Interesting find Kings Inn, but there is still nothing I believe to compell a Guard to act.

The Dytham case is a UK case meaning it is not precedent here, merely persuasive. It also applies the principle that the duty of care and duty to act must be as per statute or common law, in other words there must be an omission of a statutory duty before any criminal element can apply, and as I said already there would appear to be no duty in statute, simply a power.

The principles of duty of care owed by police to the public have since changed due to a more recent case. In Michael v The Chief Constable of South Wales Police [2015] UKSC 2 the Suprene Court has ruled no duty of care is owed to the public until the point the police take responsibility for the member of the public. Does a lack of duty of care reduce the liability of a duty to act I wonder? And when are the Police deemed to take responsibility?

Statute/common law does not state a duty or obligation, but rather a power so I don't think they even have any "responsibility" until they arrest or detain the person.

The common law offence mentioned in the Bartley case of failure to investigate and apprehend a named offender for a felony no longer exists. The qualifying criteria to apply the common law offence ceased to exist shortly after that case in 1997 thus making the offence non existant.

Little CuChulainn

Some statutes oblige Gardaí to act. The wording of the Garda power will generally contain the word "shall" as opposed to "may". An example is Section 9(1)(b) of the Road Traffic Act 2010.

http://www.irishstatutebook.ie/eli/2010/act/25/section/9/enacted/en/html#sec9

Otherwise, the obligation stems from the Garda Code and the Garda Síochána Act 2005.

GM228

I put this to my brother and he was positive that despite the use of "shall" in some instances that the Gardaí still have discretion in applying the law and therefore they are not compelled to act, this is due to a common law power of discretion they hold by virtue of their office and dates back to the birth of the force.

With a little research and help from the Garda Press Office I've discovered this would appear to be in fact the case.

The common law power of discretion was not limited, but could only be applied to minor offences leaving no power of discretion to serious offences due to it being an offence not to follow up on a felony, but due to the abolition of felonies the offence of not following up on such can't be applied as they don't exist anymore meaning that they can technically apply discretion for all their duties.

So where does this common law power of discretion come from? I was pointed in the direction to an excellent extract from the book "Criminal Justice in Ireland" by Paul O'Mahoney in which Dermot Walsh (professor of law, director of the Centre for Criminal Justice at the University of Limerick and advisor to the Dept of Justice) explains where this common law power of discretion originated from.

Common Law Peace Officer

The fact that the force lacks a legal personality separate and distinct from that of its individual members suggests that even today, more than two hundred years after organised police forces were first established in this country, the legal concept of police is still dominated by the ancient common law peace officer.

This perception is reinforced by the fact that the legislation establishing the Garda Siochana does not entrust the full complement of police powers and duties to a centralised figure such as the Garda commissioner or the minister who could then delegate police tasks to members of the force. Instead the legislation seems to have adopted by default the arrangements which have informed organised policing in Ireland since 1786 and which are quintessentially English in origin.

Under these arrangements it is the individual member of the force, as distinct from the Garda commissioner or minister, who is the primary legal actor.” The full complement of police powers and duties are invested by law in the office held by each individual member. Many of these powers and duties emanate from the common law and inhere in each member of the force by virtue of his or her status as a peace officer. Such fundamental police duties as preventing and detecting crime, maintaining public order and keeping the peace are not entrusted statutorily on each member of the force. There is no need. They already inhere in each member by virtue of his or her status as a common law peace officer. The same applies to such basic powers as the use of force in keeping the peace and restoring public order. Of course many police powers today derive from a statutory source.

Significantly, the legislation creating such powers confers them directly on each member of the force, as distinct from the garda commissioner or Minister forJustice, Equality and Law Reform.

Independence of members

The retention of the individual peace officer as the primary legal actor in an organised police force has important constitutional implications for the exercise of police powers.

Since police powers and duties vest in each member of the force by virtue of the office which he or she holds, it follows that they can be exercised only on the responsibility of the individual member concerned.

When engaged in the investigation and detection of a crime, it is a matter for the individual member to decide whether, for example, to effect an arrest. Of course, he or she may be requested to effect an arrest by a senior officer. Ultimately, however, the decision to act must be his or hers alone. The request from a senior officer cannot in itself provide a complete legal basis for the member’s actions. Even if the objective preconditions for the exercise of his or her power of arrest are present, it will still be a matter for the discretion of the individual member whether or not to effect the arrest. If he or she exercises that discretion in favour of arrest purely on the basis that he or she had been instructed to do so, the member will have failed to exercise a genuine discretion and the arrest will be unlawful. It follows that no executive authority, not even the Garda commissioner or the minister, can lawfully direct how a member of the Garda Siochana should exercise his or her police powers or discharge his her law enforcement duties in any individual case. The individual member is independent in such matters. This independence of a member of the Garda Siochana can be explained partly by the fact that he or she is exercising powers which are conferred statutorily on him or her. Ultimately, however, the member’s independence arises from his or her status as an office-holder.

When enforcing the law in his or her capacity as a peace officer he or she is exercising an original authority attaching to that common law office.

Ok so that was written just before the Garda Siochana Act 2005 so does the power still apply since that act?

In 2004 when the Garda Siochana Bill was being debated the protection of the power of discretion came up and Brian Lenihan confirmed it had never changed and it was important to protect it:-

http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad2004120800006

Mr. B. Lenihan: The Minister for Justice, Equality and Law Reform has examined the issues raised in subsection (4) but is not prepared to accept the amendment.

In common law, certain matters on which a garda can exercise a discretion relate to his or her position as an officer of the peace and a constable. That common law position has never been altered in this jurisdiction.Each individual member of the Garda Síochána has an individual discretion in certain matters. For example, a garda has the discretion as to whether to arrest an individual and whether to proceed in the prosecution of certain types of summary and minor offence. However, the Minister for Justice, Equality and Law Reform cannot direct a garda to arrest or prosecute an individual, who, for example, may have infringed the road traffic code by not having adequate illumination on a bicycle. These and many other matters are left to the Garda. This is of great importance to the citizen who needs the reassurance that a garda cannot be subject to a direction.

Section 22 gives the Minister power to issue to the Garda Commissioner written directives concerning any matter relating to the Garda Síochána. While it is drafted with a wide scope, subsection (4) ensures this wide power to be conferred on the Minister cannot be exercised to limit the independence of the Garda Síochána in performing functions in the investigation or prosecution of an offence. I gave the example of the exercise of the power of arrest. The same principle applies to many of the investigative powers which the Garda exercises at common law or statutory level. Equally, in the prosecution of an offence, a discretion rests with the Garda on a wide range of matters which come before the District Court. In the District Court, the Director of Public Prosecutions does not have power over the [1922] Garda, as a matter of law. He may have certain powers in practice but not as a matter of law. It is important that this discretion, essential to the confidence in the community enjoyed by the Garda, is safeguarded and respected by the legislation.

And so they were protected as per the Garda Siochana Act 2005, section 7 gives Gardaí their powers and functions as conferred in law, but 7 (4) protects their power of discretion from duties conferred in law:-

7(4) This section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law.

But would this protection apply to the use of shall in legislation, the answer would appear to be yes as highlighted by the penalty points issue and as confirmed by the Attorney General, the GSCO and the Garda Professional Standards Unit the Gardaí have the right to use discretion even though the application of penalty points seemed to be mandatory by the use of the word shall in legislation.

Take the Road Traffic Act 1961 Section 103 (2)(a):-

103 (2) Where a member of the Garda Síochána has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person—
(a) if the member identifies the person, the member shall serve, or cause to be served, personally or by post, on the person a notice under this section

This piece of legislation and the use of shall became centre piece in the penalty points saga a few years ago and it was shown that Garda discretion still applied due to their common law power of discretion.

From the Garda Professional Standards Unit:-

http://www.justice.ie/en/JELR/FINAL%20GPSU%20Report%20on%20FCPS%2023_04_13.pdf/Files/FINAL%20GPSU%20Report%20on%20FCPS%2023_04_13.pdf

Members of An Garda Síochána have the ability to exercise a power of discretion in deciding if someone will be subject to a penalty, for example a member may decide to formally charge a person or to issue a warning. Discretion is the freedom of being able to make that choice. Those who are in a position of power are able to exercise discretion but it is how they exercise their discretion that has to be considered. Each case has to be considered on its own merits.

The function of the Garda Síochána is set out in Section 7(1) of the Garda Síochána Act 2005 which includes the provision of policing and security services for the State with the objective of protecting property, vindicating the human rights of each individual, preventing crime, and bringing criminals to justice, including by detecting and investigating crime.

Section 7(4) of the Garda Síochána Act 2005 provides that
“this section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law”.

The Minister may issue to the Garda Commissioner written directives concerning any matter relating to An Garda Síochána, however the Minister’s power may not be exercised to limit the independence of a member of the Garda Síochána in performing functions relating to the investigation of a specific offence or the prosecution of an offence as authorised by Section 8 of the Garda Síochána Act 2005.

An examination of Section 103 of the Road Traffic Act 1961 has established that it does allow for discretion as to whether or not to issue a notice. The legislation does not say that a prosecution must be instituted, it actually states in subsection (8)(b) that a notice contains a term in respect of “a person liable to be prosecuted” and Section 103(18) sets out the time periods in which a prosecution “may be brought”.

The Attorney General further stated that the legislation “has to be read against the backdrop of the long established general principle that “there is no obligation on prosecuting authority to prosecute in any given case”. The cancellation of a notice is simply saying that the notice that was issued is no longer going to be pursued any further and a prosecution will not be instituted.

The cancellation policy states that “Cancellation is defined as the decision of a Cancelling Authority to discontinue proceedings and to withdraw the Notice for a Fixed Charge Offence after carrying out a review”. In this respect, the Attorney General advises that:
“I do not see anything in the wording of the legislation that would displace the normal prosecutorial discretion that is enjoyed by a prosecuting authority. The criminal justice system would quite simply grind to a halt if the Gardaí were obliged to prosecute every single infraction of the law no matter how technical or no matter what the public interest is”.

The Attorney General stated that it is a good strategy to have guidelines as and when discretion could be exercised. It would be more convenient for members to have some guidance and a policy on what to consider. The following extract reflects this view: “If you are entitled to exercise discretion not to prosecute it is difficult to see why you should not be able to, as a matter of administrative convenience for your staff, set out general policy consideration and examples of when such discretion might be exercised”.

The same was also confirmed by the Garda Commissioner:-
http://www.justice.ie/en/JELR/Report_to_Minister_on_FCPS.pdf/Files/Report_to_Minister_on_FCPS.pdf

In the context of FCN terminations, members of the Garda Síochána have an inherent common law power of discretion, by virtue of their office, from time immemorial.

sections 7 and 8 of the Garda Síochána Act 2005, in relation to the statutory functions of An Garda Síochána, provides that such functions "do not affect any powers, immunities, privileges or duties that members ... have ... at common law". Section 25 of the 2005 Act specifically provides that the Minister's power in relation to the issue of directives "may not be exercised to limit the independence of a member ... in performing functions relating to the investigation of a specific offence or the prosecution of an offence ...”.

In general terms, it is a well established fact that the use of discretionary powers has served An Garda Síochána well since the foundation of the State. This discretion is exercised by members of An Garda Síochána at every level in the exercise of their daily duties and responsibilities. It is an intrinsic feature of good policing, the application of which continues to assist in maintaining the positive relationship the organisation has developed with the general citizenry over its history.

So it would appear the answer to your query Kings Inn is no the Guards can't be compelled to act even by the use of shall in legislation. The use of discretion is also recognised in the Garda Code and Declaration of Professional Standards and Ethical Standards I'm advised.

snubbleste

If the Garda "fails to detect an offence", is he not negligent in his duty?

GM228

snubbleste wrote: »

If the Garda "fails to detect an offence", is he not negligent in his duty?

To be negligent there must first be a duty of care. Gardaí owe no dury of care to the public as confirmed by the High Court in M vs Commissioner of an Garda Siochana & Ors [2011 IEHC 14].

Same applies in the US, the UK and no doubt most countries.

Kings Inns or bust

That's someone's homework well and truly done if they ever figure out the search function, excellent work GM228.

Although I think we're at cross purposes in relation to compelled - of course no one can grab them and make them do something but there are cases where they will face sanction.

GM228

Kings Inns or bust wrote: »

That's someone's homework well and truly done if they ever figure out the search function, excellent work GM228.

Although I think we're at cross purposes in relation to compelled - of course no one can grab them and make them do something but there are cases where they will face sanction.

How are we at a cross-purpose in relation to compelled?

In any case how do you sanction someone for exercising a legal right of discretion which is protected by statute and encouraged to be used by the Garda code? Or are you talking about matters not in relation to applying the law?

Little CuChulainn

GM228 wrote: »

How do you sanction someone for exercising a legal right of discretion which is protected by statute and encouraged to be used by the Garda code? Or are you talking about matters not in relation to applying the law?

Disciplinary procedures still occur when a Garda uses discretion. Wasn't there a case in England last year where an officer caught someone breaking into a business and let them off with a warning? She was reported by her partner and subsequently sacked despite claiming she was simply using her power of discretion.

GM228

Little CuChulainn wrote: »

Disciplinary procedures still occur when a Garda uses discretion. Wasn't there a case in England last year where an officer caught someone breaking into a business and let them off with a warning? She was reported by her partner and subsequently sacked despite claiming she was simply using her power of discretion.

A Guard can only be disciplined for using discretion if they abuse the power for their own personal gain, not for using discretion in general.

The officer in Merseyside was sacked for gross misconduct, by doing something contrary to their book of standards I believe, they may not have the same protection for their discretionary power as is the case here, without knowing if they do or not we can't compare. In any case a Guards use of discretion is encouraged as per the Garda code so miscoduct couldn't apply.

Kings Inns or bust

GM228 wrote: »

How are we at a cross-purpose in relation to compelled?

In any case how do you sanction someone for exercising a legal right of discretion which is protected by statute and encouraged to be used by the Garda code? Or are you talking about matters not in relation to applying the law?

The guards are compelled to act by threat of sanction by as per the initial case quoted. (DPP v Bartley)

Just to make sure we're not having a semantic argument on the use of compelled here. I realise even in Bartley the guard could not have been grabbed by the scruff of the neck and frog marched on an investigation, but would you not agree the threat of a criminal sanction is compelling someone to do something? Fair enough if not, I then see where the misunderstanding lies.

I realise also it's arseways as you usually can't impose a criminal sanction for forbearance hence the reason it's so close to the aforementioned pretty pictures at the front of the manual. It's a corollary of I'm compelled not to commit assault by the NFOAP Act.

This got all Austin and Bentham all of a sudden! :pac:

BaronVon

Excellent post GM228, probably the best thing I've ever read on Boards! Well done.

GM228

Kings Inns or bust wrote: »

The guards are compelled to act by threat of sanction by as per the initial case quoted. (DPP v Bartley)

The Bartley case principles no longer apply. The offence was based on following up a named offender for a felony. This specific common law offence originated from the Creagh vs Gamble [1888] 24 L.R. Ir. 458 case and was specific to a felony, not just any category of crime.

It was an offence for a Guard to willfully and without reasonable excuse or justification neglect to perform a duty imposed on them by law, the duty being in relation to a felony, now that felonies no longer exist the power of discretion is not limited and no duty is imposed on a Guard anymore.

To be found criminally guilty a Guard would have to commit an offence of not following a duty imposed by common or statutory law, no offence exists anymore as already shown a Guard is free to use discretion - a common law power which is protected by statute.

Kings Inns or bust wrote: »

Just to make sure we're not having a semantic argument on the use of compelled here. I realise even in Bartley the guard could not have been grabbed by the scruff of the neck and frog marched on an investigation, but would you not agree the threat of a criminal sanction is compelling someone to do something? Fair enough if not, I then see where the misunderstanding lies.

Yes I agree if there was criminal sanction then that would compel someone to do something, but there is currently no criminal offence of applying discretion or not acting. In criminal liability, a simple omission or a part thereof cannot form the actus reus of a crime as a general rule, there would need to be a law that they must act - currently there isn't.

We aren't having a semantic argument on the use of the word compelled. Our argument is based on your comment that a Guard is "compelled" by law to carry out their duties and to enforce the law - as shown that is not the case.

The Bartley case is nearly 20 years old and newer case law has changed the consequences of not taking action as shown in 2011 that the Gardaí are not accountable for failing to act. Take the M vs Commissioner of an Garda Siochana & Ors [2011] IEHC 14 High Court case in which Mr Justice Hedigan confirmed that Gardaí are not responsible for failing to act as he ruled the Gardaí owe no duty of care to the public. Similar rulings have been made by the US and UK Supreme Court and the European Court of Human Rights. Mr Justice Hedigan noted in relation to his ruling that "This view of the law is entirely consistent with the jurisprudence of the European Court of Human Rights as set out in Z vs United Kingdom [2002] 34 E.H.R.R".

In light of the above case, rulings from the ECHR and persuasive rulings from other jurisdictions I think it would be near impossible to find a Guard criminally responsible in statute or common law for using the power of discretion.

Kings Inns or bust

Grand, thanks for clearing that up (the point on semantics).

While I admire the work you have done I remain unconvinced that the Criminal Law Act 1997 has removed the Common Law duty esposed in Bartley - I will read over the cases you have graciously spent time finding though before presenting (a rather inadequate, I fear) rebuttal. I find it hard to believe on an instictive level that should a person present at a barracks claiming to have been raped and giving the name and address of the accused a guard who fails to act is not looking at a very serious sanction but I will read the material.

GM228

Kings Inns or bust wrote: »

Grand, thanks for clearing that up (the point on semantics).

While I admire the work you have done I remain unconvinced that the Criminal Law Act 1997 has removed the Common Law duty esposed in Bartley

It's possible the act didn't remove the offence per se, but it removed the qualifying criteria to be able to commit the offence - namely to fail to investigate a felony. As a felony does not exist how can you charge a Guard for failing to investigate a crime which dosn't exist.

The common law offence is specific in relation to bringing someone to justice who is reasonably suspected of commiting a felony, not an offence. If it was for commiting an offence then yes it would still apply today.

We both know an omission in itself cannot form the actus reus of a crime. There needs to be a specific mandatory duty to be carried out before the criminal element can apply.

Kings Inns or bust wrote: »

I will read over the cases you have graciously spent time finding though before presenting (a rather inadequate, I fear) rebuttal. I find it hard to believe on an instictive level that should a person present at a barracks claiming to have been raped and giving the name and address of the accused a guard who fails to act is not looking at a very serious sanction but I will read the material.

The judge ruled that a Guard can't be held negligent due to not owing a duty of care to the public in relation to their actions arising from their prosecutorial or investigatory functions.

With regards to non criminal sanction, I'm not sure if you are aware of the disciplinary arrangements for the Gardaí, but they are as per satutory regulation and not an internal policy, Gardaí management are required to take action against a member only for an alleged breach specifically provided for in the regulations.

Using discretion is not an action which can leave a member liable to disciplinary action under the regulations except for corrupt or improper practice - i.e abusing the power of discretion for their private advantage.

Kings Inns or bust

GM228 wrote: »

It's possible the act didn't remove the offence per se, but it removed the qualifying criteria to be able to commit the offence - namely to fail to investigate a felony. As a felony does not exist how can you charge a Guard for failing to investigate a crime which dosn't exist.

The common law offence is specific in relation to bringing someone to justice who is reasonably suspected of commiting a felony, not an offence. If it was for commiting an offence then yes it would still apply today.

We both know an omission in itself cannot form the actus reus of a crime. There needs to be a specific mandatory duty to be carried out before the criminal element can apply.





The judge ruled that a Guard can't be held negligent due to not owing a duty of care to the public in relation to their actions arising from their prosecutorial or investigatory functions.

With regards to non criminal sanction, I'm not sure if you are aware of the disciplinary arrangements for the Gardaí, but they are as per satutory regulation and not an internal policy, Gardaí management are required to take action against a member only for an alleged breach specifically provided for in the regulations.

Using discretion is not an action which can leave a member liable to disciplinary action under the regulations except for corrupt or improper practice - i.e abusing the power of discretion for their private advantage.

There's a reply coming my friend - half of it's in word as we speak. I'm really enjoying this thanks for making this a great thread!

Kings Inns or bust

Apologies for introducing a semantic element here again but I submit that it is merely the distinction abolished by the Criminal Law Act 1997

3.—
(1) All distinctions between felony and misdemeanour are hereby abolished.
(2) Subject to the provisions of this Act, on all matters on which a distinction has previously been made between felony and misdemeanour, including mode of trial, the law and practice in relation to all offences (including piracy) shall be the law and practice applicable at the commencement of this Act in relation to misdemeanour.

Furthermore LM v Commissioner of An Garda Síochána [2015] IESC 81, seems to deal with a duty of care in negligence cases as opposed to criminal liability which is imposed in this scenario for an omission.Therefore I believe Bartley to still be good law and not at all in conflict with your excellent posts above re discretion. I see them as spate issues to be frank.

Sorry I perhaps indicated that I was going to give you more. Apologies, but I’m far from finished arguing if you’re not! :pac:

PS Wording might have gone very college assingment on my part - sorry!

PPS Just seen I've crossed cases M is still a claim in damaged but I'll read it more closely tonight - trying to do this at work at the mo! I welcome any intermediate correction!

GM228

Kings Inns or bust wrote: »

Apologies for introducing a semantic element here again but I submit that it is merely the distinction abolished by the Criminal Law Act 1997



Furthermore LM v Commissioner of An Garda Síochána [2015] IESC 81, seems to deal with a duty of care in negligence cases as opposed to criminal liability which is imposed in this scenario for an omission.Therefore I believe Bartley to still be good law and not at all in conflict with your excellent posts above re discretion. I see them as spate issues to be frank.

Sorry I perhaps indicated that I was going to give you more. Apologies, but I’m far from finished arguing if you’re not! :pac:

PS Wording might have gone very college assingment on my part - sorry!

PPS Just seen I've crossed cases M is still a claim in damaged but I'll read it more closely tonight - trying to do this at work at the mo! I welcome any intermediate correction!

Bartley can't be applicable law as it centres around a common law offence based on a felony. It's a well known that the 2007 Act abolised the use of common law offences in regard to a felony.

The debates around the Criminal Law Bill confirmed common law offences and powers based on felony would be abolished:-
http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad1997022600006?opendocument

Most notably Judge Yvonne Murphy noted this during the Church sex abuse scandal in relation to the little known offence of "misprison of felony" - a person who knew that a felony had been committed and, although not a party to it, concealed it from the authorities, was thereby guilty of misprision of felony.

She basically noted that due to the abolishment of the "distinction" by the 2007 Act that common law offences regarding felonies could no longer be applied and such offences were effectively abolished.

Kings Inns or bust

I'll concede the point although I'd be obliged to being spoon fed the provision, a cursory glance is not yieldings result for me.

Other than to say I would be very surprised that if an identical scenario was to emerge, I am sure that some form of redress would be forwarded along the lines of Bartley - however as above I concede the argument won in your favour.


Bastard :pac:

Seriously though, great thread - you may want to reignite the powers of arrest thread given the quality of your posting.

cursai

They have full discretion. Not compelled by law. But can face disciplinary action if found negligent, fraudulent(for gain etc) or endanger a life purposefully AFAIK.

But is this about the interpretation of law or real life use. Not interested in interpretation as words can be interpreted a long way within ever expanding boundaries in court.

Kings Inns or bust

cursai wrote: »

They have full discretion. Not compelled by law. But can face disciplinary action if found negligent, fraudulent(for gain etc) or endanger a life purposefully AFAIK.

But is this about the interpretation of law or real life use. Not interested in interpretation as words can be interpreted a long way within ever expanding boundaries in court.

Interpretation is something that follows certain rules and the boundaries are much more tightly controlled than one would imagine. Indeed although far from exhaustive there is even an Interpretation Act. Other than that you're looking at a Jurisprudence course I am far from fully qualified to give.

While the point has been overridden by more pressing concerns in GM228's posts the cases he/she has cited have made it quite clear that public policy will prevent a claim under negligence - how far that could be stretched is debatable - it certainly seems to stretch to poorly investigated rapes. I'm not sure how much worse it would have to get to see a change in that policy but until Lord Atkin woke up feeling frisky one morning we didn't have the basis of modern negligence so who really knows.

Little CuChulainn

I know a Garda who faced a disciplinary action for issuing a fixed charge penalty under Section 51a of the Road Traffic Act instead of doing a file and seeking a direction for a charge under Section 52. From what I'm seeing here it appears he was in the right and simply using his discretion.

Kings Inns or bust

Little CuChulainn wrote: »

I know a Garda who faced a disciplinary action for issuing a fixed charge penalty under Section 51a of the Road Traffic Act instead of doing a file and seeking a direction for a charge under Section 52. From what I'm seeing here it appears he was in the right and simply using his discretion.

Aye, putting aside the serious crimes aspect my own, poorly conducted, research backs up everything GM228 says in relation to minor offences. The peace office discretion is incredibly interesting.

I do hope you're studying/practicing GM - this would make an excellent paper, one enthusiastically read by junior members of AGS I would imagine!

I have my doubts whether the discretion is blanket of course, but the offences to which it applied would be fascinating!

cursai

Kings Inns or bust wrote: »

Aye, putting aside the serious crimes aspect my own, poorly conducted, research backs up everything GM228 says in relation to minor offences. The peace office discretion is incredibly interesting.

I do hope you're studying/practicing GM - this would make an excellent paper, one enthusiastically read by junior members of AGS I would imagine!

I have my doubts whether the discretion is blanket of course, but the offences to which it applied would be fascinating!

get yourself a copy of the garda code....i dont think its a thing that is looked at case by case rather than following a standard (discretion) guideline.

Kings Inns or bust

cursai wrote: »

get yourself a copy of the garda code....i dont think its a thing that is looked at case by case rather than following a standard (discretion) guideline.

The issue being driven at though is the Common Law power of discretion. The Garda Code can't AFAIK override the common law power espoused.

Put in ridiculous terms. The head honcho of the guards could order Garda Plod to arrest Mr. Scumbag and Garda Plod would be completely within his powers to refuse in certain circumstances. Frankly it's a completely sensible position and excellent check and balance on the system. One I expect is not there by design.

Fred Swanson

This post has been deleted.

GM228

Little CuChulainn wrote: »

I know a Garda who faced a disciplinary action for issuing a fixed charge penalty under Section 51a of the Road Traffic Act instead of doing a file and seeking a direction for a charge under Section 52. From what I'm seeing here it appears he was in the right and simply using his discretion.

Kings Inns or bust wrote: »

The head honcho of the guards could order Garda Plod to arrest Mr. Scumbag and Garda Plod would be completely within his powers to refuse in certain circumstances

It's interesting to note what Dermot Walsh and Brian Lenihan stated:-

Dermot Walsh wrote:

Even if the objective preconditions for the exercise of his or her power of arrest are present, it will still be a matter for the discretion of the individual member whether or not to effect the arrest. If he or she exercises that discretion in favour of arrest purely on the basis that he or she had been instructed to do so, the member will have failed to exercise a genuine discretion and the arrest will be unlawful. It follows that no executive authority, not even the Garda commissioner or the minister, can lawfully direct how a member of the Garda Siochana should exercise his or her police powers or discharge his her law enforcement duties in any individual case

Brian Lenihan wrote:

garda cannot be subject to a direction

Considering that many prosecutions have been successful following arrests which have been directed by senior officers I do wonder would any eagle-eyed criminal have grounds for a quashed conviction on the grounds that their arrest was unlawful? THAT would be a very interesting test case.

Equally it also presents grounds for an appeal to any sanction a Guard would have if he/she was disciplined for exercising discretion especially when use of discretion is not grounds for disciplinary action under the statutory regulations for discipline and The Garda Code and Declaration of Professional Standards and Ethical Standards recognises and encourages the use of discretion.

The Attorney General has stated that Gardaí can exercise their power, but "as a matter of administrative convenience for your staff, set out general policy consideration and examples of when such discretion might be exercised". In other words the Gardaí can give their members examples of when best to use it, not when they can't use it.

GM228

Fred Swanson wrote: »

Is the Garda code publicly available?

Unfortunately not.

Little CuChulainn

GM228 wrote: »

It's interesting to note what Dermot Walsh and Brian Lenihan stated:-





Considering that many prosecutions have been successful following arrests which have been directed by senior officers I do wonder would any eagle-eyed criminal have grounds for a quashed conviction on the grounds that their arrest was unlawful? THAT would be a very interesting test case.

Equally it also presents grounds for an appeal to any sanction a Guard would have if he/she was disciplined for exercising discretion especially when use of discretion is not grounds for disciplinary action under the statutory regulations for discipline and The Garda Code and Declaration of Professional Standards and Ethical Standards recognises and encourages the use of discretion.

The Attorney General has stated that Gardaí can exercise their power, but "as a matter of administrative convenience for your staff, set out general policy consideration and examples of when such discretion might be exercised". In other words the Gardaí can give their members examples of when best to use it, not when they can't use it.

Perhaps we should distinguish between a direction as an order in the field and a direction from the D.P.P. which is more like permission.

GM228

Sorry to dig up this thread again, but I believe I have traced (with a lot of help of Sir William Blacksone and William Lambarde writings) the origins of the Garda common law power of discretion back to circa 925 under King Athelstan's code of law and the "tithing-man" (also known as the boroes ealder/borsholder, boroehead, headboroe, or chief pledge depending on area and local custom) under the original system of policing which eventually became know as the "frankpledge" under King Canute circa 1017, I think many believe that the system of frankpledge first came about under King Henry II's The Assize of Clarendon 1166, it didn't, it was a system of Canute, the 1166 Act only restored the system after it fell apart following the conquests. I often mistakenly refer to King Canute as the C**t King by the way (he was commonly known as Cnut the Great)

In order to ensure that the system operated properly the King divided the country into shires or counties, and in each appointed as his representative a "scir-gerefa" (aka the High Sheriff). Tithingmen were the heads of "tythings" (groupings of 10 families, and 10 tythings were known as the "hundred"), ironically those who were not part of the tythings were the Franklin class - aka the Freemans and they were constantly at odds with the new legal order (I guess some things stand the test of time ) and so excluded from the protection of the law that the tythingmen gave.

Tithingmen eventually became constables after the Norman conquests, and in 1252 they became Petie Constables (having authority only in one area) and the new High Constable (having authority over the hundred):-

William Lambarde (The Duties of Constables, Borsholders, Tithingmen, and such other Low Ministers of the Peace) 1538 wrote:

petie Constables were devised in townes and parishes, for the aide of the Constables of the Hundreds: so of latter times also, Borsholders, Tythingmen, Headboroes and suche like, have bene used as petie Constables, within their owne boroes and tythings. And yet not so universally, but that some of them have at this daye none other but their old office. For in some of the Western parts of England, you shal see that where there be many Tythingmen in one parish, there only one of them is for the Queene that is a Constable, and the rest do serve but as the auncient Tythingmen did.

William Blackstone (Commentaries on the Laws of England (4th Ed) Vol I: Of The Rights of the Persons) - 1876 wrote:

These petty constables have two offices united in them: the one ancient, the other modern. Their ancient office is that of head-borough, tithing-man. or borsholder; . . . their more modern office is that of constable merely; which was appointed, as was observed, so lately as the reign of Edward 111.''' in order to assist the high constable

Circa 1195 King Richard I appointed Knights to ensure all males over 15 took an oath to keep the peace, the Knights later became the Conservators or Wardens of the Peace circa 1250. As constables had a local rather than sovereign power it is believed they developed a close working relationship with the wardens for political reasons and to ensure a smoother justice system. In 1344 the Wardens of the Peace were given powers to determine minor crimes and in 1360 the power to determine all crimes. These wardens eventually became Justices of the Peace circa 1360 (and so we have the birth of judges), resulting in the wardens loosing some of their power:-

FD Price (The Wigginton Constables' Book 1691-1836) - 1971) wrote:

During the Middle Ages, as the institutions and instruments of royal government were evolved, this "head man" came also to be seen as the representative of the village community to whom orders could be transmitted and upon whom local responsibility for their enforcement could be imposed by higher authorities: the government of the realm operating through the justices of assize and. later, the justices of the peace. The history of the constable is thus one of the gradual adapting of an ssentially local officer, created to meet the needs of an autonomous village community, to serve the purposes of a wider, national government.

Constables also became known as common law peace officers, and Gardaí are still members of that common law peace office. Tythings also held court sessions to punish law custom breakers and regular meetings to decide how to run the shires or counties so the origins of the role of a court and local government could also be traced back to them.

The original tithingmen had complete discretion in how they upheld the law and were even permitted to kill anyone who broke the law with complete impunity, that power of discretion remained when they became constables/peace officers and those powers were recognised under the common law from day one, thankfully the power to kill no longer applies.

Victor

GM228 wrote: »

In order to ensure that the system operated properly the King divided the country into shires or counties, and in each appointed as his representative a "scir-gerefa" (aka the High Sheriff). Tithingmen were the heads of "tythings" (groupings of 10 families known as the "hundred"), ironically those who were not part of the tythings were the Franklin class - aka the Freemans and they were constantly at odds with the new legal order (I guess some things stand the test of time ) and so excluded from the protection of the law that the tythingmen gave.

Tithingmen eventually became constables after the Norman conquests, and in 1252 they became Petie Constables (having authority only in one area) and the new High Constable (having authority over the hundred):-

Is the last bit correct? If a hundred is only ten families, just how many people would a Petie Constables have authority over?

GM228

Victor wrote: »

Is the last bit correct? If a hundred is only ten families, just how many people would a Petie Constables have authority over?

Typo, well spotted.

Thythings were groupings of 10 families, and a group of 10 tythings were known as the hundred.

Peregrinus

Victor wrote: »

Is the last bit correct? If a hundred is only ten families, just how many people would a Petie Constables have authority over?

Actually, by the time the tythingman/constable system was being set up, the link between the hundred as a measure of land and any particular number of people or families was pretty patchy. Hundreds in the English midlands - the old Kingdom of Mercia - typically contain about 100 hides, a "hide" being the amount of land generally considered sufficient to support a family. But in the south and east, the number of hides varies widely. This might suggest that the hundred became a more or less standard measure of land, and by the time the practice of dividing a county into hundreds was rolled out from Mercia to other parts of England, the hundred was no longer though of it in terms of the population it would support. Which means that by the time tythingmen/constables are being systematically appointed, they don't have jurisdiction over a standard population size, but over a standard land area.

GM228

In light of recent interest in the subjects covered in this thread I have revisited it.

This thread has three main elements which have been discussed, namely the Police/Peace Officer, the common law power of discretion and the possible offence of not apprehending a known offender for a felony.

Having previously discussed the origin of the Police/Peace officer and the origin of the common law power of discretion I realised we never touched on the origins of the third element, and so now I turn my interest to the origin of the common law offence of failure of a police officer to apprehend a known suspect for committing a suspected felony as mentioned in post #1 and #12 for example, though I fear this post may be somewhat uninteresting and less fulfilling in comparison to my previous posts in this thread.

The common law offence from Creagh, as confirmed in Bartley, as evident is a variation of the English common law offence of “misconduct in public office”, an offence which has origins in principles dating back to the 13th century, and was codified by Lord Mansfield in the R vs Bembridge [1783] 3 Doug KB 327 case, we have previously discussed that offence very briefly here.

The Creagh case is cited as authority for the failure to apprehend offence in this jurisdiction as per Mr Justice Carney:-

DPP vs Bartley (1997) IEHC 94 wrote:

In Creagh -v- Gamble 1887 XXIV L.R.I. p.458, Pallas C.B. said:-

"A person against whom a reasonable suspicion of a felony exists shall be brought to justice. The Peace Officer is not only entitled but bound to arrest him".

And the authority in Creagh for such was cited as no more than "varied forms of recurrance" by Lord Chief Baron Pallas:-

Creagh vs Gamble (1888) 24 L.R. Ir. 458 wrote:

Throughout the entire of our constitutional law I find in varied forms a recurrance of the principle which forms its fundamental basis, that a person against whom a reasonable suspicion of felony exists shall be brought to justice. The Peace officer is not only entitled, but bound, to arrest him. An agreement to forgoe a prosecution against him is not only illegal and void, but is itself a criminal offence, and that even if defendant be actually innocent.

Historical side note - Christopher Pallas was the Lord Chief Baron of the Exchequer in Ireland (in fact he was the last CB ever in Ireland) from 1874 until 1916, he held this title until his retirement in 1916 despite The Court of Exchequer (along with The High Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Court of Probate, the Court for Matrimonial Causes and Matters, and the Landed Estates Court) being united and consolidated and subsequently abolished in 1898 to form the Supreme Court of Judicature. This is not the Supreme Court that we know today, rather it was two divisions known as Her Majesty's High Court of Justice in Ireland and Her Majesty's Court of Appeal in Ireland.

Anyway, back on topic, Pallas has been described as "the greatest of the Irish judges" and "the unrivalled master of the common law" so I am somewhat disappointed that the authority was not more specific in his judgement, though the wording of his judgement may suggest there was no case law for the Police, just recognised principles to arrive at that conclusion, this is certainly the position taken in the English courts 105 years earlier in relation to the Misconduct offence.

Unfortunately there is very little traceable case law on the matter regarding the Police prior to the Creagh case in this jurisdiction.

It's interesting to note what Mr. Justice Carney stated in Bartley in citing the UK R vs Dytham [1979] QB 722 case:-

DPP vs Bartley (1997) IEHC 94 wrote:

It is an indictable offence at Common Law for a public officer wilfully and without reasonable excuse or justification to neglect to perform a duty imposed on him either by Common Law or Statute. That this is so was most recently confirmed in R. -v- Dytham1979 Q.B. p.722.

His comment may suggest that the offence of “misconduct in public office” is simpliciter a valid common law offence in this jurisdiction, however, in light of Dytham being applicable to the Police just like Creagh and the fact there is no evidence to suggest it's application in this state, I think it's safe to say the offence does/did not apply here other than the variation for a member of the Gardaí based on a felony as per Creagh, and it is notable the offence as per Creagh ceased to be an offence 39 days after the Bartley judgement. Misconduct in public office certainly is not on the list of common law offences still valid in this state, see here.

In the UK the Dytham case is considered the principle authority on the matter where Police are concerned and again just like Creagh it showed a variance of the misconduct offence. It based this on the Bembridge case, and just like in Creagh Lord Mansfield based the misconduct offence on principles rather than case law:-

R vs Bembridge (1783) 3 Doug KB 327 wrote:

Though the principles upon which this procession is founded may be old, the specific application of them is new, and it is therefore important to the defendant, and to the public, that the evidence and the law should be accurately understood.....

.....as to the motion in arrest of judgement the objection is, that this is a civil injury, and not indictable, and it is said that there is no precedent. The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases. Here there are two principles applicable: first, that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomever and in whatever way the officer is appointed. In Vidian there is a precedent of an indictment against the custos brevium for losing a record. Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.

Interesting to note the only “precedent” mentioned relates to the Custos Brevium as per Vidian's Entries. For those not in the know the Custos Brevium was the keeper of the writs, a principal clerk belonging to the Courts of Kings Bench and Common Pleas, so it seems a clerk from the Kings Bench had the unfortunate honour of apparently setting the earliest written precedent in relation to misconduct in public office sometime prior to 1684*.

Side question – * I have often come across reference to “Vidian's Entries”, would I be correct in saying this relates to the “Exact Pleader: a book of entries of choice, select and special pleadings in the Court of Kings-Bench in the reign of His present Majesty King Charles II : with the method of proceeding in all manner of actions in the same court” written by Andrew Vidian and published in 1684?

Despite both Creagh and Bembridge offering no earlier case law I have found earlier cases specifically dealing with the Police:-

R vs Wyatt (1705) 1 Salk 380 wrote:

Where an officer neglects a duty incumbent on him either by common law or statute, he is for his default indictable

And earlier again, the oldest case specifically dealing with the Police is Croucher’s Case [1599] 78 ER 893. Unfortunately there is nothing direct to quote, but I will quote from the UK Law Commissions Appendix A to their paper “Misconduct in Public Office” Issues Paper 1:-

Law Commission wrote:

Crouther was a constable and as such under a duty to raise a “hue and cry” within the parish he served whenever he was informed of a felony occurring therein. “Hue and cry” was a form of community policing with very ancient roots and was often the only way a victim of crime could pursue an offender and bring them to justice. Rules surrounding the hue and cry procedure allowed law officers and the community to effect summary, and often fatal justice, on suspects found either in the vicinity of the crime, or later with evidence of the crime about their person. Fundamentally there was an important public duty imposed upon those who were tasked with raising the hue and cry when the circumstances arose. In failing to do so, when informed of a burglary committed at night, Crouther thereby breached this duty and the court held that an indictment brought against him for such a breach of duty was good in law. Failure to raise a hue and cry therefore seems a good, early, example of omissions by officials being punished as misconduct because: it is the constable’s duty upon notice given unto him to presently pursue

So there you have it a little history in relation to two different but related offences.

Victor

GM228 wrote: »

Statute/common law does not state a duty or obligation, but rather a power so I don't think they even have any "responsibility" until they arrest or detain the person.

I hope I don't have the wrong end of the stick, but what of a vulnerable person, e.g. a child, elderly or sick person?

GM228

Victor wrote: »

I hope I don't have the wrong end of the stick, but what of a vulnerable person, e.g. a child, elderly or sick person.

In what context?

They owe no duty of care in relation to their prosecutorial or investigatory functions and this has been confirmed in relation to a vulnerable person - a child with an allegation of rape.

A case of negligence is actionable when outside the remit of their prosecutorial or investigatory functions.

As per Mr. Justice Hedigan:-

M vs Commissioner of An Garda Siochana & Ors (2011) IEHC 14 wrote:

The fact that the defendants are carrying out functions which are in the public interest outweighs any duty of care to private individuals. This is not to say that such bodies are immune from actions for damages arising from ordinary principles of negligence. The absence of duty relates only to their actions arising from their prosecutorial or investigatory functions

On the topic of negligence there is a debate to be made that due to their independence as Peace Officers that an action could in theory lie in the form of a person vs a person as oppoed to a person vs the Gardaí/the State , weather or not their immunity would then apply is not clear, assuming such a case could (and it's a big could) be taken I suspect it will as it applies to a member of the Police and weather or not you can take a case against them as a person does not change that fact.

nuac

Ancient history here is very interesting.
Fadó fadó when I commenced study of law in UCG some Arts subjects had also to be taken. Our English prof Gerry Murphy was strong on Anglo-Saxon and Old English. Suddenly on reading this thread it all falls into place.
Thanks guys

Victor

GM228 wrote: »

In what context?

From personal experience seeing things like:
* Child of 8-10 wandering Camden Street after midnight.
* Child of 10-12 begging on the street, alone.

I've reported these and a few similar cases over the years.

You mention "prosecutorial or investigatory functions". So, if someone is murdered, and the Garda doesn't bother doing a meaningful investigation, there can be no action for negligence?

Peregrinus

Victor wrote: »

From personal experience seeing things like:
* Child of 8-10 wandering Camden Street after midnight.
* Child of 10-12 begging on the street, alone.

I've reported these and a few similar cases over the years.

While there may or may not be crimes associated with the events which led up to this, the child himself is obviously not committing a crime by wandering or begging. So this is first and foremost not a criminal issue but a child welfare issue. And while the guards do have a role to play here, and powers that they can exercise, the agency with primary responsibility (and the widest powers) is not the guards but Tusla. My guess is that the main thing the guards do with your report is to forward it to Tusla; if Tusla ask for the guards' assistance, they'll probably get a better response than you would. So you should maybe make your reports directly to Tusla (or to the guards and Tusla).

(Worth noting at this point that if you're in a situation in which you have a mandatory reporting obligation in relation to a child welfare issue, your obligation is to make the report to Tusla, not the guards. Doesn't stop you reporting to the guards as well, of course, but it underlines the point that its the report to Tusla that matters.)

Victor wrote: »

You mention "prosecutorial or investigatory functions". So, if someone is murdered, and the Garda doesn't bother doing a meaningful investigation, there can be no action for negligence?

It's a good question, but murder might not be the best example, since there can be no liablity in negligence to the deceased victim, and the relatives may be grieving and may lack closure, but does that give them a cause of action?

But suppose a different offence; I suffer serious assault and robbery, resulting in signficant physical injury and signficant economic loss. My prospects of recovering compensation for these are diminished by the failure of the guards to investigate the crime, with the result that I either cannot identify the assailant or cannot assemble all the evidence that would be available if the crime had been properly investigated. Do I have a cause of action against the guards?

I suspect the answer will turn out to be "no", but I'll defer to GM228's superior knowledge of this area of law.

GM228

Victor wrote: »

You mention "prosecutorial or investigatory functions". So, if someone is murdered, and the Garda doesn't bother doing a meaningful investigation, there can be no action for negligence?

Pretty much, in the UK that principle was tested in relation to a murder in Hill vs Chief Constable for West Yorkshire [1988] 2 ALL ER 238. The mother of Jacqueline Hill took a case of negligence against WY Police for their failure to adequately investigate the crimes of Peter Sutcliffe (aka the Yorkshire Ripper), and as a result causing her daughter's death. The resulting "Hill Principle" was the Police owed no duty of care to the public and also owed no duty to protect the public from criminal acts, just like the M case this was due to "public policy" reasons.

In another rape case coming just before the M case, former (now retired) High Court President Mr. Justice Kearns in adopting a Hill type principle stated (with different facts to M and Hill):-

B L vs Ireland, AG and the Commissioner of An Garda Síoch&#225 wrote: »

I am satisfied to conclude that no duty of care arises in respect of bona fide actions and decisions carried out by An Garda Síochána in the course of a criminal investigation and/or prosecution. Any other view would have quite alarming consequences. One might begin by enquiring where the duty of care would begin or end. Would the victim of a crime, such as that perpetrated on the plaintiff in the present case, be the only person with an entitlement to sue, or would any such entitlement extend to immediate members of her family or perhaps to some person who might have been a witness in the trial or a witness to the event itself? By the same token, the inhibiting nature of any such duty would effectively cripple the capacity of An Garda Síochána, or any other police force for that matter, to carry out its duties effectively and with expedition. It would be unacceptable that those charged with responsibility for the investigation and prosecution of crime should have to take legal advice at every hand’s turn in respect of every step in the criminal process. Any such approach would simply render the present system, struggling as it is with the multiple obligations imposed on the Garda Síochána in respect of those suspected of crime, to constraints of unimaginable proportions

And one month after the M case another case G vs Minister for Justice, Equality and Law Reform [2011] IEHC 65 involving a woman who was raped due to the actions of Gardaí held the same view.

Mr Justice Hedigan held:-

G vs Minister for Justice, Equality and Law Reform (2011) IEHC 65 wrote:

It is now clearly established in Irish Law that Gardaí owe no duty of care in respect of actions taken in the course of their duty to investigate and prosecute crime. The absence of this duty situation arises from considerations of public policy

Another important passage from M:-

M vs Commissioner of An Garda Siochana & Ors (2011) IEHC 14 wrote:

It seems to me that the cases cited above establish that no duty of care exists in Irish law upon the defendants in respect of their investigatory or prosecutorial functions. This is because it would be contrary to the public interest that such a duty be imposed by reason of the inhibiting effect this would have on the proper exercise of those investigatory and prosecutorial functions. It is in the public interest that those bodies should perform their functions without the fear or threat of action against them by individuals. The imposition of liability might lead to the investigative operations of the police being exercised in a defensive frame of mind. A great deal of police time, trouble and expense might have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. While the recognition of individualized justice may militate in favour of the recognition of a duty of care, there are compelling considerations rooted in the welfare of the whole community, which outweigh the dictates of individualized justice

Simply put a lack of a duty of care means negligence is not actionable in relation to their prosecutorial or investigation functions.

Interestingly that is not the end of the matter though, in X (Minors) vs Bedfordshire County Council [1995] 3 ALL ER 353 the Hill Principle was applied to a Health Authority not owing a duty of care just like the Police. It went to the European Court of Human Rights, but before moving to that case it's worth noting an earlier ECHR case, namely Osman vs United Kingdom [2000] 29 EHRR 245 in which it was held that a blanket immunity for the Police in respect of their negligence was incompatible with Article 6 and (where appropriate) Article 13 of the European Convention on Human Rights, however, it accepted there is scope for domestic law to apply a more restrictive liability standard in favour of the Police in applying a "fair, just and reasonable" test, and it could be fair, just and reasonable to restrict liability to achieve the public policy objective of maintaining an effective Police service.

In Z vs United Kingdom [2002] 34 EHRR 3 which was the resulting ECHR case from X (Minors) the court qualified Osman in stating that because the English law of negligence did not recognise a general immunity from civil suit for bodies discharging public functions that no breach of the Convention was made by applying immunity to the Health Authority. It should be noted however that despite Z the English courts have since confirmed the immunity no longer applies to a Health Authority.

ECHR rulings are not binding, however they must be judicially noticed and once again we look at M:-

M vs Commissioner of An Garda Siochana & Ors (2011) IEHC 14 wrote:

This view of the law is entirely consistent with the jurisprudence of the European Court of Human Rights as set out in Z v. United Kingdom (2002) 34 EHRR 3.

Victor

Peregrinus wrote: »

While there may or may not be crimes associated with the events which led up to this, the child himself is obviously not committing a crime by wandering or begging.

But you can see that they are inappropriate and potentially unsafe situations?

These incidents were before Tusla.

Peregrinus

Victor wrote: »

But you can see that they are inappropriate and potentially unsafe situations?

Yes. My point is that action the guards might take (or might fail to take) here would not be an exercise of their 'prosecutorial and investigatory functions" - and therefore not be protected by any immunity.

So I think instead the guards would say "Removing children from inappropriate and potentially unsafe situations is not our primary role; nor are we the people primarily responsible for it. We passed on the reports to Tusla, for them to make decisions about how best to act, and would have provided any requested support to them in implementing the decisions they made. You want somebody to sue over inaction or insufficient action, sue Tusla."

Victor wrote: »

These incidents were before Tusla.

Before Tusla, this was a Health Board function.

GM228

Victor wrote: »

But you can see that they are inappropriate and potentially unsafe situations?

These incidents were before Tusla.

Peregrinus wrote: »

Yes. My point is that action the guards might take (or might fail to take) here would not be an exercise of their 'prosecutorial and investigatory functions" - and therefore not be protected by any immunity.

So I think instead the guards would say "Removing children from inappropriate and potentially unsafe situations is not our primary role; nor are we the people primarily responsible for it. We passed on the reports to Tusla, for them to make decisions about how best to act, and would have provided any requested support to them in implementing the decisions they made. You want somebody to sue over inaction or insufficient action, sue Tusla."


Before Tusla, this was a Health Board function.

The question to be asked first and fore most is do the Gardaí owe a general duty of care to a member of the public where no danger or treat of danger exiats, and in particular to a child outside the scope of their prosecutorial or investigative functions in terms of the situation described?

Do they have a duty to take such care as is reasonable in all circumstances to the child who is begging or otherwise on their own, i.e a duty to notify Tusla or take the child to their parents or otherwise remove them where for example there is no apparent real or immediate danger to the child that they are aware, or rather should be aware of?

I'm not sure there is, it's not clear, that said there may be arguments to be made based on the UNs Convention on the Rights of the Child, but until we actually have some legislative framework on the Convemtion or specific case law on the issue we may not get a definitive answer.